IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

UNITED STATES OF AMERICA : CRIMINAL ACTION

:

v. :

:

RASAN TOWNSEND : NO. 05-51

MEMORANDUM

McLaughlin, J. December 10, 2010

Rasan Townsend was convicted by a jury on July 27,

2005, of possession of a firearm after having been convicted of a

crime punishable by imprisonment for more than one year in

violation of 18 U.S.C. § 922 (g)(1) and 924 (e). He was

sentenced on July 4, 2006, to 235 months of imprisonment (180

months was a statutory mandatory sentence), five years supervised

release, a fine of $1,500 and $100 special assessment. Mr.

Townsend appealed to the United States Court of Appeals for the

Third Circuit. The Court of Appeals affirmed his conviction and

the United States Supreme Court denied certiorari. 

Mr. Townsend has filed a pro se Motion to Vacate, Set

Aside, or Correct Sentence Under 28 U.S.C. § 2255. He claims

that his trial counsel was ineffective for failing to investigate

and call a witness Mr. Townsend contends was material to his

defense, and for failing to cross-examine effectively key

government witnesses.
I. The Evidence at Trial

On September 26, 2004, during the midnight to 8 a.m.

shift, Philadelphia Police Officers Davis and Blackwell were

working together in plainclothes in an unmarked police car. At

approximately 1:12 a.m., the officers were traveling north on

65 Street when they heard gunshots coming from the area of th

Greenway Avenue. The officers saw Mr. Townsend running from the

corner of 65 Street and Greenway Avenue with a gun in his right th

hand. They pulled up next to him and identified themselves. Mr.

Townsend continued to run across 65 Street with the gun in his th

hand. With the officers in pursuit, he then ran toward the 6400

block of Upland Street, threw the gun into an alley between 65th

and Simpson Streets, and continued to run. Mr. Townsend turned

and ran south on 65 Street. Officer Blackwell caught him in th

the rear of 2000 65 Street. th

The officers recovered Mr. Townsend’s abandoned gun

from the alley. It was a Glock 9mm black pistol, serial number

DCP022, loaded with one round in the chamber and one round in the

magazine. The officers returned to 65 Street and Greenway th

Avenue where they saw and recovered 9mm cartridge casings on the

ground outside 6501 Greenway Avenue. Testing revealed that these

casings were fired from the gun abandoned by Mr. Townsend and

recovered by the police. The gun was test-fired and found to be

operable. The firearm was made in Austria and imported into this

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country by Glock, Inc., to Smyrna, Georgia. At the time of his

arrest, Mr. Townsend had been previously convicted of a crime

punishable by imprisonment for a term exceeding one year.

II. Discussion

Whether or not counsel will be considered “ineffective”

for habeas purposes is governed by the two-part test articulated

by the Supreme Court in Strickland v. Washington, 466 U.S. 668

(1984). Under Strickland, the defendant must prove that (1)

counsel’s representation fell below an objective standard of

reasonableness; and (2) that there is a reasonable probability

that, but for counsel’s error, the result would have been

different. Id. at 687-96; see also United States v. Nino, 878

F.2d 101 (3d Cir. 1989).

In evaluating the first prong, a Court must be “highly

deferential” to counsel’s decision and there is a “strong

presumption” that counsel’s performance was reasonable. United

States v. Kauffman, 109 F.3d 186 (3d Cir. 1997)(citing

Strickland). Counsel must have wide latitude in making tactical

decisions. Strickland, 466 U.S. at 689. The defendant must

overcome the presumption that, under the circumstances, the

challenged action might be considered sound trial strategy. 

United States v. Gray, 878 F.2d 702 (3d Cir. 1989). 

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The conduct of counsel should be evaluated on the facts

of the particular case, viewed as of the time of the conduct. 

Strickland, 466 U.S. at 690. The Third Circuit, quoting

Strickland, has cautioned that: the range of reasonable

professional judgments is wide and courts must take care to avoid

illegitimate second-guessing of counsel’s strategic decisions

from the superior vantage point of hindsight. Gray, 878 F.2d at

711. 

For the second prong, the courts have defined a

“reasonable probability” as one which is sufficient to undermine

confidence in the outcome. Strickland, 466 U.S. at 694. Put

another way, whether there is a reasonable probability that,

absent the errors, the factfinder would have had a reasonable

doubt respecting guilt. The effect of counsel’s inadequate

performance must be evaluated in light of the totality of the

evidence at trial.

The defendant’s showing that there was a reasonable

probability that the verdict would have been different cannot be

based on mere speculation about what a potential witness would

have said. In the usual case, the defendant should present the

testimony of the potential witness so that the Court can

determine what information and testimony would have been revealed

had the witness testified. Id. The Court must then decide

whether this evidence, when considered along with the rest of the

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evidence, would have led a conscientious and impartial jury to

have a reasonable doubt about the defendant’s guilt. Id.

The petitioner advances two bases in support of a

contention that his trial counsel was ineffective: (1) trial

counsel failed to investigate and call a witness, Jermaine Lee,

who would have said that the defendant did not have the firearm

at issue that night, that another unnamed person possessed it;

and (2) trial counsel failed effectively to impeach key

government witnesses for failure to process evidence for latent

fingerprints or gunpowder residue, and failed to impeach them for

bias.

With respect to the first claim –- failure to call a

witness –- the Court finds that the defendant’s failure to

establish that there is a reasonable probability that the result

would have been different had counsel called Jermaine Lee as a

witness renders consideration of the quality of counsel’s

performance unnecessary.

Mr. Townsend relies upon the testimony of Jermaine Lee

at the preliminary hearing in state court, before the case was

adopted by the United States Attorney’s Office, as evidence of

what Mr. Lee would have said at the federal trial.

At the state court level, where the district attorney

brought several charges against petitioner, including aggravated

assault, simple assault, reckless endangerment of another person,

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possession of instruments of crime, and illegal possession of a

firearm, and named Jermaine Lee as the complainant, Mr. Lee

testified that he could not remember that anything ever occurred

during the night of September 26, 2004.

Q: Did you come into contact with anybody you

see present in the courtroom today?

A: No, ma’am.

Q: Okay. And, and, and . . .

The Court: What happened to you on that day?

Q: And at that time.

A: (Witness nods head)

THE COURT: You never came into contact with

anyone that you see in the

courtroom today; is that correct?

A: Yes.

THE COURT: Okay. Thank you.

Q: Okay. And . . .

THE COURT: Are you going to have something

else?

A: And what . . .

THE COURT: What, if anything, happened to you

that day sir?

A: Nothing that I can recall.

THE COURT: “Nothing that I can recall?”

A: Nothing that I can recall.

THE COURT: Nothing at all?

A: No.

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THE COURT: Okay. And, I guess that would be

about it. Okay. Nobody shot at

you sir?

Q: No, ma’am.

THE COURT: Okay. Thank you. You just don’t

remember or –- or you –- you are

invoking the 5 Amendment, or th

something? Where are we going,

D.A.?

The only conclusion from Mr. Lee’s state court

testimony is that he would have failed to inculpate the defendant

in the assaultive crimes but could not have exonerated him from

the gun possession charge when two police officers at the scene

testified that they observed the petitioner with the gun. If Mr.

Lee had tried to testify other than he had at the preliminary

hearing, he would not have been credible. The defendant has not

shown prejudice from the failure to call Mr. Lee.

With respect to the petitioner’s second claim –- that

trial counsel failed to impeach government witnesses –- the

record does not support the factual allegations.

The record establishes that trial counsel attacked both

Officers Davis and Blackwell for bias, contending through crossexamination, that due to an internal affairs complaint Mr.

Townsend had filed against them years earlier in an unrelated

matter, they were out to get him. Tr. of Trial on July 25, 2005,

at 61-65, 80-81.

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Similarly, as to the issue of potential forensic tests

the police department could have conducted, but did not, forensic

analyses were addressed during the trial. The government called

Detective Matthew Farley who testified that he made the decision

not to order the firearm to be fingerprinted because the gun was

observed in the hand of the suspect who was arrested and charged

with it’s possession. Trial counsel capably sought to undermine

that testimony by asking whether the detective had actually seen

Mr. Townsend with the firearm. Officer Farley was compelled to

answer in the negative.

As for the absence of tests for gunpowder residue on

the petitioner’s hands or clothing, pursuing a strategy to

exploit that lack of evidence would have highlighted the fact of

shots fired, spent cartridges recovered, and the petitioner’s

potential involvement in a shooting. Experienced counsel

recognized that discharging the firearm was not an element of the

offense of felon in possession and could only serve to prejudice

the defendant by portraying him as a shooter.

The Court, therefore, will deny the petition without an

evidentiary hearing. Where the record affirmatively indicates

that a claim for relief is without merit, this Court may refuse

to hold a hearing. See, e.g., Page v. United States, 462 F.2d

932, 933 (3d Cir. 1972). Moreover, this Court may draw upon its

personal knowledge and recollection of events relating to the

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defendant’s claim. Government of Virgin Islands v. Nicholas, 759

F.2d 1073, 1077 (3d Cir. 1985).

Rule 4(b) of the Rules Governing Section 2255

proceedings requires a judge to order the summary dismissal of a

Section 2255 petition “[i]f it plainly appears from the face of

the motion and any annexed exhibits and prior proceedings in the

case that the movant is not entitled to relief.” That standard

is met here.

Finally, when a district court rules on a motion made

under 28 U.S.C. § 2255, an appeal of that decision will be

considered by the Court of Appeals only if the applicant makes a

substantial showing of a denial of a constitutional right. Mr.

Townsend is unable to make such a showing and, therefore, a

certificate of appealability should not issue.

An appropriate Order will issue separately.

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